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PAG LIN
1 1 Section 1. Section 657.11, Code Supplement 1995, is
1 2 amended by adding the following new subsection:
1 3 NEW SUBSECTION. 3A. The rebuttable presumption does not
1 4 apply to a person during any period that the person is
1 5 classified as a chronic violator under this subsection,
1 6 including a confinement feeding operation in which the person
1 7 holds a controlling interest, as defined by rules adopted by
1 8 the department of natural resources. The rebuttable
1 9 presumption shall apply to the person on and after the date
1 10 that the person is removed from the classification of chronic
1 11 violator. For purposes of this subsection, "confinement
1 12 feeding operation" means an animal feeding operation in which
1 13 animals are confined to areas which are totally roofed, and
1 14 which are regulated by the department of natural resources or
1 15 the environmental protection commission.
1 16 a. A person shall be classified as a chronic violator if
1 17 the person has committed three or more violations as described
1 18 in this subsection prior to, on, or after the effective date
1 19 of this Act. In addition, in relation to each violation, the
1 20 person must have been subject to either of the following:
1 21 (1) The assessment of a civil penalty by the department or
1 22 the commission in an amount equal to three thousand dollars or
1 23 more.
1 24 (2) A court order or judgment for a legal action brought
1 25 by the attorney general after referral by the department or
1 26 commission.
1 27 Each violation must have occurred within five years prior
1 28 to the date of the latest violation, counting any violation
1 29 committed by a confinement feeding operation in which the
1 30 person holds a controlling interest. A violation occurs on
1 31 the date the department issues an administrative order to the
1 32 person assessing a civil penalty of three thousand dollars or
1 33 more, or on the date the department notifies a person in
1 34 writing that the department will recommend that the commission
1 35 refer, or the commission refers the case to the attorney
2 1 general for legal action, or the date of entry of the court
2 2 order or judgment, whichever occurs first. A violation under
2 3 this subsection shall not be counted if the civil penalty
2 4 ultimately imposed is less than three thousand dollars, the
2 5 department or commission does not refer the action to the
2 6 attorney general, the attorney general does not take legal
2 7 action, or a court order or judgment is not entered against
2 8 the person. A person shall be removed from the classification
2 9 of chronic violator on the date on which the person and all
2 10 confinement feeding operations in which the person holds a
2 11 controlling interest have committed less than three violations
2 12 described in this subsection for the prior five years.
2 13 b. For purposes of counting violations, a continuing and
2 14 uninterrupted violation shall be considered as one violation.
2 15 Different types of violations shall be counted as separate
2 16 violations regardless of whether the violations were committed
2 17 during the same period. The violation must be a violation of
2 18 a state statute, or a rule adopted by the department, which
2 19 applies to a confinement feeding operation and any related
2 20 animal feeding operation structure, including an anaerobic
2 21 lagoon, earthen manure storage basin, formed manure storage
2 22 structure, or egg washwater storage structure; or any related
2 23 pollution control device or practice. The structure, device,
2 24 or practice must be part of the confinement feeding operation.
2 25 The violation must be one of the following:
2 26 (1) Constructing or operating a related animal feeding
2 27 operation structure or installing or using a related pollution
2 28 control device or practice, for which the person must obtain a
2 29 permit, in violation of statute or rules adopted by the
2 30 department, including the terms or conditions of the permit.
2 31 (2) Intentionally making a false statement or
2 32 misrepresenting information to the department as part of an
2 33 application for a construction permit for the related animal
2 34 feeding operation structure, or the installation of the
2 35 related pollution control device or practice, for which the
3 1 person must obtain a construction permit from the department.
3 2 (3) Failing to obtain a permit or approval by the
3 3 department for a permit to construct or operate a confinement
3 4 feeding operation or use a related animal feeding operation
3 5 structure or pollution control device or practice, for which
3 6 the person must obtain a permit from the department.
3 7 (4) Operating a confinement feeding operation, including a
3 8 related animal feeding operation structure or pollution
3 9 control device or practice, which causes pollution to the
3 10 waters of the state, if the pollution was caused
3 11 intentionally, or caused by a failure to take measures
3 12 required to abate the pollution which resulted from an act of
3 13 God.
3 14 (5) Failing to submit a manure management plan as
3 15 required, or operating a confinement feeding operation
3 16 required to have a manure management plan without having
3 17 submitted the manure management plan.
3 18 EXPLANATION
3 19 The bill amends section 657.11, which currently provides
3 20 that a rebuttable presumption arises that an animal feeding
3 21 operation is not a public or private nuisance, if the animal
3 22 feeding operation is not in violation of law and has obtained
3 23 all required permits. This bill provides that the rebuttable
3 24 presumption does not apply to a person classified as a chronic
3 25 violator, including a confinement feeding operation in which
3 26 the person holds a controlling interest. A person is
3 27 classified as a chronic violator if the person has committed
3 28 three or more violations prior to, on, or after the effective
3 29 date of the bill. In addition, the person must have been
3 30 subject to either the assessment of a civil penalty by the
3 31 department or the commission in an amount equal to $3,000 or
3 32 more, or a court order or judgment based on a referral from
3 33 the department or commission. The assessment, court order, or
3 34 judgment must have occurred five years prior to the date of
3 35 the latest violation. The bill provides that a person is
4 1 classified as a chronic violator if the person commits certain
4 2 violations relating to the construction or operation of the
4 3 confinement feeding operation, including the storage and
4 4 disposal of manure from the operation.
4 5 LSB 4393XC 76
4 6 da/sc/14
Text: SSB02311 Text: SSB02313 Text: SSB02300 - SSB02399 Text: SSB Index Bills and Amendments: General Index Bill History: General Index
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